Fifth Circuit Court of Appeals

The Fifth Circuit Court of Appeals has ruled in favor of Dish Network in a case involving allegations of violation of prerecorded telephone call restrictions.  Ybarra v. Dish Network.  Dish contacted the plaintiff’s cell phone 15 times to collect an unpaid balance.  Ybarra obtained the number in 2013 which had previously been used by an unnamed person as an account number to receive satellite television services.  Dish contacted the number after this unnamed person stopped paying and used a dialer which plays prerecorded message when met by a live voice.  Ybarra, however, did not answer the telephone calls and did not receive any prerecorded voice call.  The Court ruled “unless the recipient answers, an artificial prerecorded voice is never used.”


Commissioner Michael O’Rielly of the Federal Communications Commission (“FCC”) recently spoke to an industry group regarding the TCPA and revised rule from July 10, 2015.  He claimed that the FCC’s actions have made “it even harder for legitimate companies offering legitimate services to consumers to comply [with the rules.]”  He noted that more than 2,000 TCPA class actions were filed in 2014 alone, but the definition of “automatic telephone dialing system” was so broad that the only possible thing excluded from the definition was a “rotary phone.”  He also noted that the one-call protection for reassigned numbers was not much of a protection because the caller is deemed to have “constructive knowledge” that a number has been changed after one call, even if the call is unanswered.


A California court has granted a defendant’s motion for summary judgment after plaintiff claimed her number was on the national “do-not-call” registry.  Freyja v. Dun & Bradstreet, Inc.  The Court noted that the “do-not-call” list applies only to telephone solicitations and Dun & Bradstreet called the plaintiff to ask her about her services, not to market or sell anything.

Further, the Court ruled that the defendant called her manually using a desktop telephone.  The Court ruled a desktop telephone is not an automatic telephone dialing system.


The Shamblin v. Obama for America case has been closed by Judge Virginia Covington who ruled that the defendants’ offer of judgment to Shamblin combined with an offer for injunctive relief to not call her number with an automatic telephone dialing system in the future (or otherwise violate the TCPA) fully satisfied her claim and dismissed the case with regard to calls to her.

Comment: The Court had earlier repeatedly denied the class certification, which was a real issue of importance to the plaintiff’s attorneys.


The Illinois Supreme Court has held that an offer of judgment does not make a potential TCPA class moot.  Ballard RN Center, Inc. v. Kohll’s Pharmacy and Homecare, Inc.  The case involved “junk faxes” sent offering corporate flu shots.


A Missouri judge on Monday declined to delay a class action accusing Costco of violating the TCPA by sending unsolicited faxes in The Backer Law Firm v. Costco.  Costco has asked the FCC for a waiver of disclosure requirements for faxes sent at the express request of the recipient.  U.S. District Judge Stephen R. Bough said he is not able to determine what effect the FCC’s action could have on the lawsuit. 

Missouri has entered into a $575,000 settlement with a California insurance company settling allegations of violations of the state no-call list.  The Missouri Attorney General had received more than 275 no-call complaints about Farmers’ Insurance Exchange and its telemarketing practices.

The state of Missouri has filed suit against Charter Communications alleging violations of the state no-call rules.  Missouri Attorney General Chris Koster had received more than 350 no-call complaints about Charter.

Comment: Missouri’s no-call list differs in important ways from the federal rule, including, having a shorter established business relationship exemption, but providing for more exemptions than the federal list offers.

A Missouri court has declined to stay a case, Boswell v. Panera Bread Company, based on the Supreme Court’s pending decision in Campbell-Ewald, Co. v. Gomez

Comment: The case is not a TCPA case, but it did involve an offer of judgment which Panera argued made the class moot.

New York

A court has rejected a class action brought by a recipient of a prerecorded call more than six years ago against a cable television channel.  Lifetime Entertainment Services sent a prerecorded call notifying New York subscribers that Project Runway changed channels and Mark Lehse, sued alleging the call violated the TCPA. 

The cable channel did not have a list of the recipients of the calls, nor did its vendor, and the judge ruled that the class was therefore not “ascertainable” allowing Lehse’s individual claim only to proceed.


A Pennsylvania court has stayed a TCPA case, Duchene v. Westlake Services, based on the pending Supreme Court decisions in Spokeo, Inc. v. Robins and Campbell-Ewald, Co. v. Gomez.  The Court ruled that the plaintiff would not be prejudiced by a short stay pending those Supreme Court decisions.

An appellate court has overturned a ruling in favor of Yahoo! that its tech system was not an automatic telephone dialing system.  Dominguez v. Yahoo!, Inc.  Plaintiff bought a cell phone that came with a reassigned telephone number.  The previous owner had subscribed to an email notification service from Yahoo! which sent a text message to the owner’s number every time an email was received on the Yahoo! account.  Dominguez tried to stop the texts and contacted customer service and received 27,809 text messages over 17 months.  After the trial court dismissed the case ruling in favor of the Yahoo! that its system was not dialing in a “random or sequential fashion,” the FCC issued its July 10, 2015, ruling which caused the appeal court to overturn the trial court’s decision.

Comment: Dominguez could win almost $14 million in damages which would make him, as far as I know, the single highest paid plaintiff in TCPA history.